THE IMPORT-EXPORT CLAUSE Boris 1. Bittker· Brannon P. Denning·· 1. INTRODUCTION A companion piece to the Commerce Clause of the Consti- tution is the less well-known Import-Export Clause: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.l The Import-Export Clause was the principal remedy pro­ posed by the Philadelphia Convention to remedy the commer­ cial strife that characterized the relations among the states under the Articles of Confederation, as noted by the Supreme Court in 1976: • Sterling Professor of Law Emeritus, Yale University. •• LL.M. Candidate, Yale Law School. Research Associate and Senior Fellow, Yale Law School 1997-98. This article is adapted from material to be published in a forthcoming trea­ tise entitled Bittker on The Regulation of Interstate and Foreign Commerce. 1 U.S. CaNST., art. I, § 10, d. 2. See generally Elliot D. Hinds, Student Pa­ per, State Taxes and the Import-Export Clause, 14 AM. J. TAX POL'y 73 (1997); Andrew Lizotte, Comment, Taxation-State Excise Taxes on Goods to Be Exported Held Unconstitutional, 15 SUFFOLK TRANSNAT'L L.J. 430 (1991). See also Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REv. 432 (1941); Steve Charnovitz, The North American Free Trade Agreement: Green Law or Green Spin?, 26 LAw & POL'y INT'L. BuS. 1, 6-14 (1994); Walter Hellerstein, State Taxation and the Supreme Court: .Toward a More Unified Approach to Constitutional Adjudication?, 75 MICH. L. REv. 1426, 1428-30 (1977). 521 HeinOnline -- 68 Miss. L.J. 521 1998-1999 522 MISSISSIPPI LAW JOURNAL [Vol. 68 One of the major defects of the Articles of Confederation, and a compelling reason for the calling of the Constitutional Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased. Before 1787 it was commonplace for seaboard States with port facilities to derive revenue to defray the costs of state and local governments by imposing taxes on imported goods destined for customers in other States. At the same time, there was no secure source of revenue for the central government.2 The Constitutional Convention of 1787 adopted the Import­ Export Clause a few days after it adopted the Federal Export Clause, which forbids the federal government from imposing taxes or duties on "articles exported from any state."3 The Import-Export Clause has long been overshadowed by the Commerce Clause, but their roles were reversed at the Philadelphia Convention, where commercial strife among the states occupied center stage and evoked the passion and elo­ quence ofthe delegates, including the Convention's most memo­ rable metaphors-New Jersey was known as the "[c]ask tapped at both ends" by New York and Philadelphia; North Carolina was the "patient bleeding from both arms" because it was locat­ ed between Virginia and South Carolina.4 The proposed reme­ dy for this exploitation of the inland states by the seaboard states was the Import-Export Clause. There were, to be sure, complaints about the lack of effective national commercial leadership, and the Commerce Clause was adopted to cure this deficiency in the Articles of Confederation by authorizing Con­ gress to regulate interstate and foreign commerce. However, 2 Michelin Tire Corp. v. Wages, 423 U.S. 276, 283 (1976). 3 U.S. CONST. art. I, § 9, cl. 5. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445 (1827) (stating that "[tlhere is some diversity in language [between the Import-Export and Federal Export Tax Clauses), but none is perceivable in the act which is prohibited"). • James Madison, Preface to Debates in the Convention of 1787, reprinted in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 539, 542 (Max Farrand ed., rev. ed. 1966). HeinOnline -- 68 Miss. L.J. 522 1998-1999 1998] THE IMPORT-EXPORT CLAUSE 523 the discussion of this issue was tame ~hen compared with the fire and brimstone that erupted during the debate over the Im­ port-Export Clause. Indeed, the Commerce Clause seemed to evoke even less attention than the Federal Export Clause, which prohibited federal taxes or duties on "articles exported from any state."5 This marked difference of tone in the Philadelphia debates extends to the choice oflanguage in the phrasing of the Import­ Export Clause and the.Commerce Clause themselves: the Im­ port-Export Clause is detailed, reflecting its emergence from a spirited debate that aired a diversity of rival proposals for ending the perceived commercial evils, while the Commerce Clause is vague and general, like the terse comments support­ ing its adoption. On the other hand, the two provisions embody a common failing: neither answered in advance the most trou­ blesome and important question ofinterpretation. For the Com­ merce Clause, the question was whether it operated of its own force to restrict state regulations of interstate commerce, even if Congress had not preempted the subject; and for the Import­ Export Clause, the unaddressed question was whether it ap­ plied to domestic and foreign commerce, or only to the latter. These issues were not settled by the Supreme Court until 1851 and 1868, respectively.6 The Import-Export Clause not only attracted more atten­ tion at Philadelphia than the Commerce Clause, but its lan­ guage responded so explicitly and seemingly so comprehensive­ ly7 to the commercial maladies that led up to the Annapolis conclave of 1786, and then to the Philadelphia Convention, that it is not entirely clear what other problems were to be solved • u.s. CONST. art. I, § 9, cl. 5. 6 See generally Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1868) (stating Import-Export Clause is limited to foreign commerce); Cooley v. Board of War­ dens, 53 U.S. (12 How.) 299 (1851) (holding that states could not regulate, under Commerce Clause, those subjects that are national or that require single uniform plan of regulation). 7 "Seemingly" comprehensive because at its inception, the Import-Export Clause seemed to cover imports and exports between the states as well as in for­ eign commerce; only in 1868, when Woodruff v. Parham was decided, was its ap­ parent breadth curtailed to shipments to and from foreign countries. HeinOnline -- 68 Miss. L.J. 523 1998-1999 524 MISSISSIPPI LAW JOURNAL .[Vol. 68 by the Commerce Clause. To be sure, the Import-Export Clause restricts only the taxing powers of the states, not their regu­ latory authority; the latter area of potential interstate commer­ cial strife was subjected to centralized congressional control by the Commerce Clause. But the commercial complaints of 1787 were overwhelmingly, if not exclusively, attributed to state taxes, not to other types of state regulation. As for use of the Commerce Clause as a lever enabling Congress to regulate private enterprise as well as to demolish objectionable state regulations, there is little evidence that this extension of feder­ al authority was the focus of the Framers' attention. In a long-forgotten dissent in an early Import-Export Clause case, Justice Nelson offered a plausible explanation of why the Commerce Clause would not do the job that was as­ signed to the Import-Export Clause. If, as he foresaw, the Com­ merce Clause was interpreted to allow the states to levy nondiscriminatory taxes on merchandise regardless of its place of origin, southern products like cotton, tobacco and rice might be subjected by the northern states to an ostensibly neutral tax, though in fact the tax would be tantamount to a discrimi­ natory export tax, since the taxing states produced none of the taxed commodity.8 Indeed, he viewed the Commerce Clause as merely the ineffectual successor to a provision of the Articles of Confederation,9 preserving a provision "which the framers of [the Constitution] had rejected as wholly inadequate for the protection of interstate commerce."lO In Nelson's eyes, the Im- 8 See Woodruff, 75 U.S. (8 Wall.) at 145 (Nelson, J., dissenting). 9 The provision to which Justice Nelson referred, Article IV of the Articles of the Confederation, in relevant part, guaranteed that the free inhabitants of each of these [sltates ... shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each [sltate shall have free ingress and regress to and from any other [sltate, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any [s)tate, to any other state of which the owner is an inhabitant .... ART. CONFED., art. IV (U.S. 1781). 10 Woodruff, 75 U.S. (8 Wall.) at 145 (Nelson, J., dissenting). HeinOnline -- 68 Miss. L.J. 524 1998-1999 1998] THE IMPORT-EXPORT CLAUSE 525 port-Export Clause was adopted as "a more complete and thor­ ough security to the enjoyment of the privileges of [interstate] commerce."11 It is therefore not far-fetched to suggest that as of 1789, the Commerce Clause was a handkerchief thrown over some­ thing already covered by a blanket. With the passage of time, of course, the Commerce Clause became vastly more important than the Import-Export Clause (perhaps partly because the latter achieved its goals without much litigation),12 which nei­ ther empowers Congress to act (except in waiving the con­ straints imposed by the Import-Export Clause on the states), nor limits the state's power to impose non-tax regulations on commerce.